HomeMy WebLinkAboutMINUTES - 02282012 - C.32RECOMMENDATION(S):
OPPOSE H.R. 1837 (Nunes), the "Sacramento-San Joaquin Valley Water Reliability Act,"
as recommended by Supervisor Piepho.
FISCAL IMPACT:
No fiscal impact to the County from this action.
BACKGROUND:
H.R. 1837 was introduced by Congressmen Nunes, McCarthy, and Denham (R-CA) on
May 11, 2011, and on February 14, 2012, Republicans offered an amendment in the nature
of a substitute. This revised version contained extreme provisions, which would upset state
water rights, placing the priorities of a few agricultural interests over the water needs of
other farmers, fishermen, municipalities, industries, and the environment.
If enacted, H.R. 1837 would have far reaching impacts, not just for California but for the
Bureau of Reclamation and the seventeen western states.
The Sacramento-San Joaquin Delta Counties of Solano, Sacramento, San Joaquin, Contra
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 02/28/2012 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I
Supervisor
Mary N. Piepho, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
ABSENT:Gayle B. Uilkema, District II
Supervisor
Contact: L. DeLaney,
925-335-1097
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the
Board of Supervisors on the date shown.
ATTESTED: February 28, 2012
David Twa, County Administrator and Clerk of the Board of Supervisors
By: Carrie Del Bonta, Deputy
cc:
C.32
To:Board of Supervisors
From:Supervisor Mary N. Piepho
Date:February 28, 2012
Contra
Costa
County
Subject:OPPOSE Position on H.R. 1837 (Nunes), the “Sacramento-San Joaquin Valley Water Reliability Act.”
Costa, and Yolo, working together as the Delta Counties Coalition (DCC), are in
BACKGROUND: (CONT'D)
the process of crafting a letter to our legislative delegation and the author of this bill
expressing opposition to H.R. 1837, as currently constructed.
The DCC is concerned that H.R. 1837 contains a number of provisions that appear to
arbitrarily block legal protections for the Sacramento-San Joaquin Delta (Delta) and its
fisheries. Specifically, for example, the DCC is concerned about the consequences of
provisions that would change or limit the use of the 800,000 acre-feet of Central Valley
Project (CVP) water that was devoted to fish and wildlife purposes in the original Central
Valley Project Improvement Act (CVPIA).
The DCC also has significant concerns about the impacts to Delta fisheries, water quality,
and sensitive ecosystems that would result from the bill’s requirement to revert back to
the provisions of the 1994 Bay-Delta Accord as the benchmark environmental document
to be used in meeting today’s biological and hydrological needs in the Delta.
Additionally, the DCC is gravely concerned about the consequences of provisions that
preempt state land, water and environmental laws which currently require more stringent
protections than those outlined in the Accord, which was agreed to nearly 18 years ago.
Other provisions of the bill would eliminate an existing tiered pricing system for water
use and change water contracts so they last 40 years instead of 25 and could be
automatically renewed. It also would eliminate a requirement that new and renewed
contracts must undergo an environmental impact study.
The DCC appreciates the inclusion of language in Title IV mandating that the Central
Valley Project be operated in a manner consistent with State water law provisions related
to “area of origin, watershed of origin and county of origin….” This is helpful and
consistent with a long-held view that federal law should specifically and fully recognize
and respect California’s water rights priority system and statutory protections for areas of
origin.
Nonetheless, taken as a whole, the bill would take our region and the state in the wrong
direction. The bill is focused on the past; it takes us backwards, and that is not a direction
that holds any promise for collaborative, consensus-based solutions to California’s
complex water challenges or a healthier Delta. The DCC are troubled by the way the bill
was constructed. It was put together behind closed doors, with neither public transparency
nor meaningful input from the diversity of California’s water and environmental interests.
This bill is not expected to survive in the U.S. Senate, where both California senators,
Dianne Feinstein and Barbara Boxer, are in opposition to the bill.
For more information about the bill, see the attached report on prepared by Congressmen
Markey and Napolitano, ranking Democrats of the full Natural Resources Committee and
HR 1837 IH
112th CONGRESS
1st Session
H. R. 1837
To address certain water-related concerns on the San Joaquin River, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
May 11, 2011
Mr. NUNES (for himself, Mr. MCCARTHY of California, and Mr. DENHAM) introduced the
following bill; which was referred to the Committee on Natural Resources
A BILL
To address certain water-related concerns on the San Joaquin River, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress
assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `San Joaquin Valley Water Reliability Act'.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--CENTRAL VALLEY PROJECT IMPROVEMENT ACT
REFORMS
Sec. 101. Amendment to purposes.
Sec. 102. Amendment to definition.
Sec. 103. Limitation on contracting and contract reform.
Sec. 104. Water transfers, improved water management, and conservation.
Sec. 105. Fish, wildlife, and habitat restoration.
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Sec. 106. Restoration Fund.
Sec. 107. Additional authorities.
Sec. 108. Compliance with Endangered Species Act of 1973.
Sec. 109. Authorized service area.
Sec. 110. Area of origin and prior rights.
Sec. 111. Water storage.
TITLE II--SAN JOAQUIN RIVER RESTORATION
Sec. 201. Reference.
Sec. 202. Preemption of State law.
Sec. 203. Repeal of the San Joaquin River Settlement.
Sec. 204. Satisfaction and discharge of obligations.
Sec. 205. San Joaquin River Habitat Restoration.
Sec. 206. Restoration Fund.
Sec. 207. Natural and artificially spawned species.
TITLE III--REPAYMENT CONTRACTS AND ACCELERATION OF
REPAYMENT OF CONSTRUCTION COSTS
Sec. 301. Repayment contracts and acceleration of repayment of construction costs.
TITLE I--CENTRAL VALLEY PROJECT IMPROVEMENT ACT REFORMS
SEC. 101. AMENDMENT TO PURPOSES.
Section 3402 of the Central Valley Project Improvement Act (106 Stat. 4706) is amended--
(1) in subsection (f), by striking the period at the end; and
(2) by adding at the end the following:
`(g) to ensure that water dedicated to fish and wildlife purposes by this title is replaced and provided
to Central Valley Project water contractors by December 31, 2016, at the lowest cost reasonably
achievable; and
`(h) to facilitate and expedite water transfers in accordance with this Act.'.
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SEC. 102. AMENDMENT TO DEFINITION.
Section 3403(a) of the Central Valley Project Improvement Act (106 Stat. 4707) is amended to read
as follows:
`(a) the term `anadromous fish' means those native stocks of salmon (including steelhead) and
sturgeon that, as of October 30, 1992, were present in the Sacramento and San Joaquin Rivers and
their tributaries and ascend those rivers and their tributaries to reproduce after maturing in San
Francisco Bay or the Pacific Ocean;'.
SEC. 103. LIMITATION ON CONTRACTING AND CONTRACT
REFORM.
Section 3404 of the Central Valley Project Improvement Act (106 Stat. 4710) is amended by striking
the language of the section and by adding:
`(a) Renewal of Existing Long-Term Contracts- Upon request of the contractor, the Secretary shall
renew any existing long-term repayment or water service contract that provides for the delivery of
water from the Central Valley Project for a period of 40 years, and renew such contracts for
successive periods of 40 years each.
`(b) Delivery Charge- Beginning on the date of the enactment of this Act, a contract entered into or
renewed pursuant to this section shall include a provision that requires the Secretary to charge the
other party to such contract only for water actually delivered by the Secretary.'.
SEC. 104. WATER TRANSFERS, IMPROVED WATER
MANAGEMENT, AND CONSERVATION.
Section 3405 of the Central Valley Project Improvement Act (106 Stat. 4710) is amended as follows:
(1) In subsection (a)--
(A) by inserting before `Except as provided herein' the following: `The Secretary shall take all
necessary actions to facilitate and expedite transfers of Central Valley Project water in accordance
with such Act or any other provision of law.';
(B) in paragraph (1)(A), by striking `to combination' and inserting `or combination';
(C) in paragraph (2), by adding at the end the following:
`(E) The contracting district from which the water is coming, the agency, or the Secretary shall
determine if a written transfer proposal is complete within 45 days after the date of submission of
such proposal. If such district or agency or the Secretary determines that such proposal is incomplete,
such district or agency or the Secretary shall state with specificity what must be added to or revised in
order for such proposal to be complete.
`(F) Except as provided in this section, the Secretary shall not impose mitigation or other
requirements on a proposed transfer, but the contracting district from which the water is coming or the
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agency shall retain all authority under State law to approve or condition a proposed transfer.'; and
(D) by adding at the end the following:
`(4) Notwithstanding any other provision of law--
`(A) the authority to make transfers or exchanges of, or banking or recharge arrangements using,
Central Valley Project water that could have been conducted before October 30, 1992, is valid, and
such transfers, exchanges, or arrangements shall not be subject to, limited, or conditioned by this title;
and
`(B) this title shall not supersede or revoke the authority to transfer, exchange, bank, or recharge
Central Valley Project water that existed prior to October 30, 1992.'.
(2) In subsection (b)--
(A) in the heading, by striking `Metering' and inserting `Measurement'; and
(B) by inserting after the first sentence the following: `The contracting district or agency, not
including contracting districts serving multiple agencies with separate governing boards, shall ensure
that all contractor-owned water delivery systems within its boundaries measure surface water at the
district or agency's facilities up to the point the surface water is commingled with other water
supplies.'.
(3) By striking subsection (d).
(4) By redesignating subsections (e) and (f) as subsections (d) and (e), respectively.
(5) By amending subsection (e) (as redesignated by paragraph (4)) to read as follows:
`(e) Restoration Fund- All revenues received by the Secretary that exceed the cost-of-service rate
applicable to the delivery of water transferred from irrigation use to municipal and industrial use
under subsection (a) shall be deposited into the Restoration Fund, as established under section 3407.'.
SEC. 105. FISH, WILDLIFE, AND HABITAT RESTORATION.
Section 3406 of the Central Valley Project Improvement Act (106 Stat. 4714) is amended as follows:
(1) In subsection (b)--
(A) in paragraph (1), by amending subparagraph (B) to read as follows:
`(B) MODIFICATION OF PROGRAM-
`(i) IN GENERAL- As needed to achieve the goals of the program established under this paragraph,
the Secretary may modify Central Valley Project operations to provide reasonable water flows of
suitable quality, quantity, and timing to protect all life stages of anadromous fish. Such flows shall be
provided--
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`(I) from the quantity of water dedicated for fish, wildlife, and habitat restoration purposes under
paragraph (2);
`(II) from the water supplies acquired pursuant to paragraph (3); and
`(III) from other sources that do not conflict with fulfillment of the Secretary's remaining contractual
obligations to provide Central Valley Project water for other authorized purposes.
`(ii) INSTREAM FLOW NEEDS- Reasonable instream flow needs for all Central Valley Project
controlled streams and rivers shall be determined by the Secretary based on recommendations of the
United States Fish and Wildlife Service and the National Marine Fisheries Service after consultation
with the United States Geological Survey.';
(B) by amending paragraph (2) to read as follows:
`(2) upon October 30, 1992, dedicate and manage annually 800,000 acre-feet of Central Valley
Project yield for the purposes of implementing the fish, wildlife, and habitat restoration purposes and
measures authorized by such Act; assisting the State of California in its efforts to protect the waters of
the San Francisco Bay/Sacramento-San Joaquin Delta Estuary; and helping to meet such obligations
as may be legally imposed upon the Central Valley Project under State or Federal law following
October 30, 1992, including additional obligations under the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.). For the purpose of this section, the term `Central Valley Project yield' means the
delivery capability of the Central Valley Project during the 1928 to 1934 drought period after fishery,
water quality, and other flow and operational requirements imposed by terms and conditions existing
in licenses, permits, and other agreements pertaining to the Central Valley Project under applicable
State or Federal law existing on October 30, 1992, have been met. All Central Valley Project water
used for the purposes specified in this paragraph shall be credited to the quantity of Central Valley
Project yield dedicated and managed under this paragraph by determining how the dedication and
management of such water would affect the delivery capability of the Central Valley Project during
the 1928 to 1934 drought period after fishery, water quality, and other flow and operational
requirements imposed by terms and conditions existing in licenses, permits, and other agreements
pertaining to the Central Valley Project under applicable State or Federal law existing on October 30,
1992, have been met. To the fullest extent possible and in accordance with section 3411, Central
Valley Project water dedicated and managed pursuant to this paragraph shall be reused to fulfill the
Secretary's remaining contractual obligations to provide Central Valley Project water for agricultural
or municipal and industrial purposes.'; and
(C) by amending paragraph (2)(C) to read:
`(C) If by March 15th of any year the quantity of Central Valley Project water forecasted to be made
available to water service or repayment contractors in the Delta Division of the Central Valley Project
is below 75 percent of the total quantity of water to be made available under said contracts, the
quantity of Central Valley Project yield dedicated and managed for that year under this paragraph
shall be reduced by 25 percent.'.
(2) By adding at the end the following:
`(i) Satisfaction of Purposes- By pursuing the programs and activities authorized by this section, the
Secretary shall be deemed to have met the mitigation, protection, restoration, and enhancement
purposes of section 2 of the Act of August 26, 1937 (Chapter 832; 50 Stat. 850).'.
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SEC. 106. RESTORATION FUND.
Section 3407 of the Central Valley Project Improvement Act (106 Stat. 4714) is amended as follows:
(1) By amending subsection (a) to read as follows:
`(a) Restoration Fund Established-
`(1) IN GENERAL- There is established in the Treasury the `Central Valley Project Restoration
Fund', which shall be available for deposit of donations from any source and revenues collected under
sections 3404(c)(3), 3405(f), 3406(c)(1), and 3407(d). Funds donated to the Restoration Fund by a
non-Federal entity for a specific purpose shall be expended for such purpose only and shall not be
subject to appropriation. Amounts deposited shall be credited as offsetting collections. Not less than
50 percent of the amounts deposited to the Restoration Fund shall be expended for purposes of the
Central Valley Project unit or division regarding which the amounts were collected.
`(2) PROHIBITION- The Secretary may not--
`(A) directly or indirectly require a donation or other payment to the Restoration Fund, or
environmental restoration or mitigation fees not otherwise provided by law, as--
`(i) a condition to providing for the storage or conveyance of non-Central Valley Project water
pursuant to Federal reclamation laws; or
`(ii) a condition to the delivery of water pursuant to section 215 of the Reclamation Reform Act of
1982 (Public Law 97-293; 96 Stat. 1270); or
`(B) require a donation or other payment to the Restoration Fund for any water that is delivered with
the sole intent of groundwater recharge.
`(3) USE OF CERTAIN AMOUNTS- The Secretary shall use the amounts collected pursuant to
section 3406(c)(1)--
`(A) to assist in improving water quality, riparian values, and fish habitat in the San Joaquin River
from Friant Dam to Mendota Pool; or
`(B) to support other projects benefitting land within the Friant Division.
`(4) CERTAIN USE OF RESTORATION FUND- Except as provided under paragraph (1), funds
deposited into the Restoration Fund may be appropriated for the acquisition of water supplies and the
construction of facilities used to implement projects or programs undertaken pursuant to section
3408(j).'.
(2) In subsection (c), by amending paragraph (1) to read as follows:
`(1) To the extent required in Acts of appropriation, the Secretary shall assess and collect additional
annual payments, in addition to the charges collected under sections 3404(c)(3), 3405(a)(1)(C),
3405(f), and 3406(c)(1), consisting of charges to direct beneficiaries of the Central Valley Project
under subsection (d) of this section in order to recover a portion or all of the costs of carrying out
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programs, projects, plans, habitat restoration, improvement, and acquisition provisions of this title.'.
(3) By adding at the end the following:
`(g) Report on Expenditure of Funds- At the end of each fiscal year, the Secretary, in consultation
with the Restoration Fund Advisory Board, shall submit to Congress a plan for the expenditure of all
of the funds deposited into the Restoration Fund during the preceding fiscal year. Such plan shall
contain a cost effectiveness analysis of each expenditure.
`(h) Advisory Board-
`(1) ESTABLISHMENT- There is hereby established the Restoration Fund Advisory Board
(hereinafter in this section referred to as the `Advisory Board') composed of 12 members selected by
the Secretary, each for four year terms, one of whom shall be designated by the Secretary as
Chairman. The members shall be selected so as to represent the various Central Valley Project
stakeholders, four of whom shall be from CVP agricultural users, three from CVP municipal and
industrial users, three from CVP power contractors, and two at the discretion of the Secretary. The
Secretary and the Secretary of Commerce may each designate a representative to act as an observer of
the Advisory Board.
`(2) DUTIES- The duties of the Advisory Board are as follows:
`(A) To meet at least semi-annually to develop and make recommendations to the Secretary regarding
priorities and spending levels on projects and programs carried out pursuant to the Central Valley
Project Improvement Act.
`(B) To ensure that any advice or recommendation made by the Advisory Board to the Secretary
reflect the independent judgment of the Advisory Board.
`(C) Not later than December 31, 2012, and annually thereafter, to transmit to the Secretary and
Congress recommendations required under subparagraph (A).
`(D) Not later than December 31, 2012, and biennially thereafter, to transmit to Congress a report that
details the progress made in achieving the goals of the Restoration Fund as identified in this Act.
`(3) ADMINISTRATION- With the consent of the appropriate agency head, the Advisory Board may
use the facilities and services of any Federal agency. Non-Federal members of the Advisory Board,
while engaged in the performance of their duties away from their homes or regular places of business,
may be allowed travel expenses, including per diem in lieu of subsistence under section 5703 of title
5, United States Code. Funds from the Restoration Fund may be used to carry out this paragraph.
`(4) FACA- The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Advisory
Board.'.
SEC. 107. ADDITIONAL AUTHORITIES.
(a) Authority for Certain Activities- Section 3408(c) of the Central Valley Project Improvement Act
(106 Stat. 4728) is amended to read as follows:
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`(c) Contracts for Additional Storage and Delivery of Water-
`(1) IN GENERAL- The Secretary is authorized to enter into contracts pursuant to Federal
reclamation law and this title with any Federal agency, California water user or water agency, State
agency, or private organization for the exchange, impoundment, storage, carriage, and delivery of
non-project water for domestic, municipal, industrial, fish and wildlife, and any other beneficial
purpose.
`(2) LIMITATION- Nothing in this subsection shall be deemed to supersede the provisions of section
103 of Public Law 99-546 (100 Stat. 3051).
`(3) AUTHORITY FOR CERTAIN ACTIVITIES- The Secretary shall use the authority granted by
this subsection in connection with requests to exchange, impound, store, carry, or deliver nonproject
water using Central Valley Project facilities for any beneficial purpose.
`(4) RATES-
`(A) IN GENERAL- The Secretary shall develop rates not to exceed the amount required to recover
the reasonable costs incurred by the Secretary in connection with a beneficial purpose under this
subsection. Such rates shall be charged to a party using Central Valley Project facilities for such
purpose. Such costs shall not include any donation or other payment to the Restoration Fund.
`(B) REDUCTION IN OPERATIONS AND MAINTENANCE- Any payment received in connection
with the use of Central Valley Project facilities shall be applied to reduce the current-year operations
and maintenance expenses, otherwise payable by Central Valley Project contractors, for such facilities
used.
`(5) CONSTRUCTION- This subsection shall be construed and implemented to facilitate and
encourage the use of Central Valley Project facilities to exchange, impound, store, carry, or deliver
nonproject water for any beneficial purpose.'.
(b) Reporting Requirements- Section 3408(f) of the Central Valley Project Improvement Act (106
Stat. 4729) is amended--
(1) by striking `Interior and Insular Affairs and Merchant Marine and Fisheries' and inserting `Natural
Resources';
(2) in the second sentence, by inserting before the period at the end the following: `, including
progress on the plan required by subsection (j)'; and
(3) by adding at the end the following: `The filing and adequacy of such report shall be personally
certified to the Committees referenced above by the Regional Director of the Mid-Pacific Region of
the Bureau of Reclamation.'.
(c) Project Yield Increase- Section 3408(j) of the Central Valley Project Improvement Act (106 Stat.
4730) is amended to read as follows:
`(j) Project Yield Increase-
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`(1) PLAN REQUIRED- In order to minimize adverse effects upon existing Central Valley Project
water contractors resulting from the water dedicated for fish and wildlife under this title, and to assist
the State of California in meeting its future water needs, the Secretary, on a priority basis and not later
than September 30, 2012, shall submit to Congress a least-cost plan to increase, as soon as possible
but not later than September 30, 2016 (except for the construction of new facilities which shall not be
limited by that deadline), the water of the Central Valley Project by the amount dedicated and
managed for fish and wildlife purposes under this title and otherwise required to meet the purposes of
the Central Valley Project including satisfying contractual obligations.
`(2) CONTENTS OF PLAN- The plan required by paragraph (1) shall include--
`(A) recommendations on appropriate cost-sharing arrangements and authorizing legislation or other
measures needed to implement the intent, purposes, and provisions of this subsection; and
`(B) a description of how the Secretary intends to use the following options:
`(i) Improvements in, modification of, or additions to the facilities and operations of the project and
construction of new water storage facilities.
`(ii) Conservation.
`(iii) Transfers.
`(iv) Conjunctive use.
`(v) Purchase of water.
`(vi) Purchase and idling of agricultural land.
`(vii) Direct purchase of water rights.
`(viii) Water banking and recharge.
`(3) IMPLEMENTATION OF PLAN- Subject to the availability of appropriated funds, the Secretary
shall implement the plan required by paragraph (1) commencing on October 1, 2012. In order to carry
out this subsection, the Secretary shall coordinate with the State of California in implementing
measures for the long-term resolution of problems in the San Francisco Bay/Sacramento-San Joaquin
Delta Estuary.
`(4) FAILURE OF THE PLAN- Not withstanding any other provision of law, if by September 30,
2016, the plan required by paragraph (1) fails to increase the annual delivery capability of the Central
Valley Project by 800,000 acre-feet, implementation of section 3406(b)(2) shall be suspended until
the plan achieves an increase in the annual delivery capability of the Central Valley Project by
800,000 acre-feet.'.
(d) Technical Correction- Section 3408(h) of the Central Valley Project Improvement Act (106 Stat.
4729) is amended--
(1) in paragraph (1), by striking `paragraph (h)(2)' and inserting `paragraph (2)'; and
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(2) in paragraph (2), by striking `paragraph (h)(i)' and inserting `paragraph (1)'.
SEC. 108. COMPLIANCE WITH ENDANGERED SPECIES ACT OF
1973.
(a) Compliance-
(1) IN GENERAL- All requirements of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)
shall be considered to be fully met for the protection and conservation of the species listed pursuant to
the Act for the operations of the Central Valley Project and the California State Water Project, if the
Central Valley Project and the California State Water Project are operated in a manner consistent with
the `Principles for Agreement on the Bay-Delta Standards Between the State of California and the
Federal Government' dated December 15, 1994.
(2) BIOLOGICAL OPINIONS AND MODIFICATION- The Secretary of the Interior and the
Secretary of Commerce shall issue biological opinions for coordinated operations of the Central
Valley Project and the California State Water Project that are no more restrictive than provisions of
the `Principles for Agreement on the Bay-Delta Standards Between the State of California and the
Federal Government' dated December 15, 1994. Such biological opinions may be modified only with
the consent of the signatories to the `Principles for Agreement on the Bay-Delta Standards Between
the State of California and the Federal Government' dated December 15, 1994.
(b) Preemption of State Law-
(1) STATE LAW PREEMPTION- Neither the State of California, an agency of the State, nor any
political subdivision of the State shall adopt or enforce any requirement for the protection or
conservation of any species listed under the Endangered Species Act for the operations of the Central
Valley Project or the California State Water Project that is more restrictive than the requirements of
this section. Any provision of California State law that authorizes the imposition of conditions or
restrictions on the operations of the Central Valley Project or the California State Water Project for
the protection or conservation of a species that is more restrictive than this section is preempted.
(2) NATIVE SPECIES PROTECTION- Any restriction imposed under California law on the take or
harvest of any nonnative or introduced aquatic or terrestrial species that preys upon a native fish
species that occupies the Sacramento and San Joaquin Rivers and their tributaries or the
Sacramento-San Joaquin Rivers Delta shall be void and is preempted.
SEC. 109. AUTHORIZED SERVICE AREA.
The authorized service area of the Central Valley Project shall include the area within the boundaries
of the Kettleman City Community Services District, California, as those boundaries exist on the date
of the enactment of this title. Notwithstanding the provisions of the Act of October 30, 1992, (Public
Law 102-575, 106 Stat. 4600 et seq.) upon enactment of this title, the Secretary is authorized and
directed to enter into a long-term contract in accordance with the Reclamation laws with the
Kettleman City Community Services District, California, for the delivery of up to 900 acre-feet of
Central Valley Project water for municipal and industrial use. The Secretary may temporarily reduce
deliveries of the quantity of water made available pursuant to up to 25 percent of such total whenever
reductions due to hydrologic circumstances are imposed upon agricultural deliveries of Central Valley
Project water.
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SEC. 110. AREA OF ORIGIN AND PRIOR RIGHTS.
Nothing in this title shall affect the Secretary's duty to operate the Central Valley Project in a manner
consistent with applicable provisions of State water law protecting any area of origin, watershed of
origin, county of origin, or any other water rights, such as senior appropriative rights, including rights
appropriated prior to December 19, 1914.
SEC. 111. WATER STORAGE.
The Secretary, acting through the Commissioner of the Bureau of Reclamation, may provide funds
authorized to be appropriated to the surface storage projects identified in section 103(d)(1) of the
Water Supply, Reliability, and Environmental Improvement Act (Public Law 108-361) and Acts
supplemental and amendatory of that Act, to local joint powers authorities formed pursuant to State
law by irrigation districts and other local water districts and local governments within the applicable
hydrologic region, to advance those projects.
TITLE II--SAN JOAQUIN RIVER RESTORATION
SEC. 201. REFERENCE.
Subtitle A of title X of Public Law 111-11 is hereby repealed.
SEC. 202. PREEMPTION OF STATE LAW.
Notwithstanding section 8 of the Reclamation Act of 1902, except as provided herein, this title
preempts and supersedes any State law, regulation, or requirement that imposes more restrictive
requirements or regulations on the activities authorized under such title. Provided nothing herein shall
exempt the Friant Division, Hidden Unit, and Buchanan Unit of the Central Valley Project from
orders issued by the State Water Resources Control Board pursuant to the Porter-Cologne Water
Quality Control Act (California Water Code Sections 13000 et seq.).
SEC. 203. REPEAL OF THE SAN JOAQUIN RIVER SETTLEMENT.
As of the date of enactment of this title, the Secretary shall cease any action to implement the San
Joaquin River Restoration Settlement Act (subtitle A of title X of Public Law 111-11) and the
Stipulation of Settlement (Natural Resources Defense Council, et al. v. Kirk Rodgers, et al., Eastern
District of California, No. Civ. S-88-1658 LKK/GGH).
SEC. 204. SATISFACTION AND DISCHARGE OF OBLIGATIONS.
Congress finds and declares that the enactment of this section satisfies and discharges all of the
following obligations:
(1) Those of the Secretary contained in section 3406(c)(1) of the Reclamation Projects Authorization
and Adjustment Act of 1992 (Public Law 102-575), except that the Secretary shall continue to assess
and collect the charges described in such section 3406(c)(1).
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(2) Those of the Secretary and all other parties to protect and keep in good condition any fish that may
be planted or exist below Friant Dam, including any obligations under section 5937 of the California
Fish and Game Code and the public trust doctrine.
SEC. 205. SAN JOAQUIN RIVER HABITAT RESTORATION.
(a) Purpose- The purpose of this section is to implement a program of increased water releases from
Friant Dam to address environmental, habitat, fisheries, and water quality concerns on the San
Joaquin River from Friant Dam to Sack Dam.
(b) Definitions- For the purposes of this section:
(1) RESTORATION FLOWS- The term `Restoration Flows' means the minimum flow of 50 cubic
feet per second at Sack Dam, located approximately 85 river miles downstream from Friant Dam.
(2) SECRETARY- The term `Secretary' means the Secretary of the Interior.
(3) WATER YEAR- The term `Water Year' means October 1 through the following September 30.
(c) Critical Water Year- For purposes of this section a Critical Water Year is when the total
unimpaired runoff at Friant Dam is less than 400,000 acre-feet.
(d) Release of Restoration Flows- In each Water Year, commencing in the Water Year starting on
October 1, 2012, the Secretary--
(1) shall modify Friant Dam operations so as to release the Restoration Flows for that Water Year,
except in any critical water year;
(2) shall ensure that the release of Restoration Flows are maintained at the levels prescribed by this
section;
(3) shall release the Restoration Flows in a manner that improves the fishery in the San Joaquin River
below Friant Dam, but upstream of Gravelly Ford in existence as of the date of the enactment of this
section, and the associated riparian habitat, while improving water quality in the San Joaquin River at
Vernalis and achieving such other environmental benefits as the Secretary may reasonably determine;
and
(4) may, without limiting the actions required under paragraphs (1) through (3) and subject to
subsection (m), use the Restoration Flows to enhance or restore a warm water fishery if the Secretary
determines that it is reasonable, prudent, and feasible to do so.
(e) Effect on Existing Obligations- Except as described in subsection (f), nothing in this section shall
modify any existing obligation of the United States under Federal Reclamation law to operate the
Central Valley Project in conformity with State law and existing or to be renewed water service,
repayment, purchase, or exchange contracts.
(f) Recovery of Restoration Flows- Not later than 1 year after the date of the enactment of this
section, the Secretary shall develop and implement a least-cost plan to fully recover or replace all
Restoration Flows and provide such recovered or replacement flows to those water service contractors
12
within the Friant Division, Hidden Unit, and Buchanan Unit of the Central Valley Project that
relinquished the Restoration Flows so recovered or replaced. Such a program shall not impact the
water supply or water rights of any entity outside the Friant Division, Hidden Unit, and Buchanan
Unit of the Central Valley Project.
(g) Groundwater Impact Plan-
(1) IN GENERAL- Not later than 1 year after the date of the enactment of this section, the Secretary,
in cooperation with representatives of affected landowners, shall develop and implement a least-cost
plan to fully mitigate the impact on groundwater resources within the service area of the Friant
Division, Hidden Unit, and Buchanan Unit of the Central Valley Project caused by the release of
Restoration Flows.
(2) MITIGATION- The mitigation required under paragraph (1) may include one or more of the
following: the development of new water supplies, land retirement, and groundwater banking and
recharge projects. To the extent Restoration Flows are recovered or replaced pursuant to subsection
(g) in a manner that mitigates the impact on groundwater resources caused by the release of
Restoration Flows, such recovery or replacement may be considered to be a part of the plan to be
implemented under this subsection.
(h) Private Rights of Action- Nothing in this section shall confer upon any person or entity a private
right of action or claim for relief to interpret or enforce the provisions of this section. Any Central
Valley Project long-term water service or repayment contractor within the Friant Division, Hidden
Unit, or Buchanan Unit adversely affected by the Secretary's failure to comply with subsection (f) or
(g) may bring an action against the Secretary for injunctive relief or damages, or both. Any action for
damages shall be brought in the United States Court of Federal Claims.
(i) No Impacts on Other Interests- No Central Valley Project or other water other than San Joaquin
River water impounded by or bypassed from Friant Dam shall be used to implement subsection (d)
unless such use is on a voluntary basis. No cost associated with the implementation of this section
shall be imposed directly or indirectly on any Central Valley Project contractor, or any other person or
entity, outside the Friant Division, the Hidden Unit, or the Buchanan Unit, unless such costs are
incurred on a voluntary basis. The implementation of this section shall not result directly or indirectly
in any reduction in water supplies or water reliability on any Central Valley Project contractor, any
State Water Project contractor, or any other person or entity, outside the Friant Division, the Hidden
Unit, or the Buchanan Unit, unless such reductions or costs are incurred on a voluntary basis.
(j) Priority-
(1) IN GENERAL- All actions taken under this section shall be subordinate to the Secretary's use of
Central Valley Project facilities to make Project water, other than water released from the Friant Dam
pursuant to this section, and the Secretary's performance of the Agreement.
(2) DEFINITION OF AGREEMENT- For the purposes of this subsection, the term `Agreement'
means the Agreement of November 24, 1986, between the United States and the Department of Water
Resources of the State of California for the coordinated operation of the Central Valley Project and
the State Water Project as authorized by section 103 of Public Law 99-546, including any agreement
to resolve conflicts arising from that Agreement.
13
SEC. 206. RESTORATION FUND.
There is hereby established within the Treasury of the United States a fund, to be known as the San
Joaquin River Fishery Restoration Fund, into which the following funds shall be deposited and used
solely for the purpose of implementing this title:
(1) All payments received pursuant to section 3406(c)(1) of the Reclamation Projects Authorization
and Adjustment Act of 1992 (Public Law 102-575; 106 Stat. 4721).
(2) Any non-Federal funds, including State cost-sharing funds, contributed to the United States for
this purpose.
(3) Funds in the San Joaquin River Restoration Fund, (Public Law 111-11 section 10009(c)(1)), on
the day before the date of the enactment of this Act.
SEC. 207. NATURAL AND ARTIFICIALLY SPAWNED SPECIES.
After the date of the enactment of this title, the Secretary shall not distinguish between
natural-spawned and hatchery-spawned or otherwise artificially propagated strains of a species in
making any determination under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) that
relates to any anadromous fish species present in the Sacramento and San Joaquin Rivers or their
tributaries and ascend those rivers and their tributaries to reproduce after maturing in San Francisco
Bay or the Pacific Ocean.
TITLE III--REPAYMENT CONTRACTS AND ACCELERATION OF REPAYMENT OF
CONSTRUCTION COSTS
SEC. 301. REPAYMENT CONTRACTS AND ACCELERATION OF
REPAYMENT OF CONSTRUCTION COSTS.
(a) Conversion of Contracts-
(1) Not later than 1 year after enactment, the Secretary of the Interior, upon request of the contractor,
shall convert all existing long-term contracts with any Central Valley Project contracts entered under
subsection (e) of section 9 of the Act of August 4, 1939 (53 Stat. 1196), to contracts under subsection
(d) of section 9 of said Act (53 Stat. 1195), under mutually agreeable terms and conditions.
(2) Upon request of the contractor, the Secretary is further authorized to convert, not later than 1 year
after enactment, any Central Valley Project long-term contract entered under subsection (c)(2) of
section 9 of the Act of August 4, 1939 (53 Stat. 1194), to a contract under subsection (c)(1) of section
9 of said Act, under mutually agreeable terms and conditions.
(3) All contracts entered into pursuant to paragraph (1) shall--
(A) require the repayment, either in lump sum or by accelerated prepayment, of the remaining amount
of construction costs identified in the most current version of the Central Valley Project Schedule of
Irrigation Capital Allocations by Contractor, as adjusted to reflect payments not reflected in such
schedule, and properly assignable for ultimate return by the contractor, no later than January 31, 2013,
or if made in approximately equal annual installments, no later than January 31, 2016; such amount to
14
be discounted by 1/2 the Treasury Rate. An estimate of the remaining amount of construction costs as
of January 31, 2013, as adjusted, shall be provided by the Secretary of the Interior to each contractor
no later than 180 days after enactment;
(B) require that, notwithstanding subsection (c)(2), construction costs or other capitalized costs
incurred after the effective date of the contract or not reflected in the schedule referenced in
subparagraph (A), and properly assignable to such contractor, shall be repaid in not more than 5 years
after notification of the allocation if such amount is a result of a collective annual allocation of capital
costs to the contractors exercising contract conversions under this subsection of less than $5,000,000.
If such amount is $5,000,000 or greater, such cost shall be repaid as provided by applicable
Reclamation law, provided that the reference to the amount of $5,000,000 shall not be a precedent in
any other context; and
(C) provide that power revenues will not be available to aid in repayment of construction costs
allocated to irrigation under the contract.
(4) All contracts entered into pursuant to paragraph (2) shall--
(A) require the repayment in lump sum of the remaining amount of construction costs identified in the
most current version of the Central Valley Project Schedule of Municipal and Industrial Water Rates,
as adjusted to reflect payments not reflected in such schedule, and properly assignable for ultimate
return by the contractor, no later than January 31, 2016. An estimate of the remaining amount of
construction costs as of January 31, 2016, as adjusted, shall be provided by the Secretary of the
Interior to each contractor no later than 180 days after enactment; and
(B) require that, notwithstanding subsection (c)(2), construction costs or other capitalized costs
incurred after the effective date of the contract or not reflected in the schedule referenced in
subparagraph (A), and properly assignable to such contractor, shall be repaid in not more than 5 years
after notification of the allocation if such amount is a result of a collective annual allocation of capital
costs to the contractors exercising contract conversions under this subsection of less than $5,000,000.
If such amount is $5,000,000 or greater, such cost shall be repaid as provided by applicable
Reclamation law, provided that the reference to the amount of $5,000,000 shall not be a precedent in
any other context.
(b) Final Adjustment- The amounts paid pursuant to subsection (a) shall be subject to adjustment
following a final cost allocation by the Secretary of the Interior upon completion of the construction
of the Central Valley Project. In the event that the final cost allocation indicates that the costs properly
assignable to the contractor are greater than what has been paid by the contractor, the contractor shall
be obligated to pay the remaining allocated costs. The term of such additional repayment contract
shall be no less than 1 year and no more than 10 years, however, mutually agreeable provisions
regarding the rate of repayment of such amount may be developed by the parties. In the event that the
final cost allocation indicates that the costs properly assignable to the contractor are less than what the
contractor has paid, the Secretary of the Interior is authorized and directed to credit such overpayment
as an offset against any outstanding or future obligation of the contractor.
(c) Applicability of Certain Provisions-
(1) Notwithstanding any repayment obligation under subsection (a)(3)(B) or subsection (b), upon a
contractor's compliance with and discharge of the obligation of repayment of the construction costs as
provided in subsection (a)(3)(A), the ownership and full-cost pricing limitations of any provision of
15
Federal Reclamation Law shall not apply to lands in such district.
(2) Notwithstanding any repayment obligation under paragraph (3)(B) or paragraph (4)(B) of
subsection (a), or subsection (b), upon a contractor's compliance with and discharge of the obligation
of repayment of the construction costs as provided in paragraphs (3)(A) and (4)(A) of subsection (a),
the Secretary of the Interior shall waive the pricing provisions of section 3405(d) of the Reclamation
Projects Authorization and Adjustment Act of 1992 (Public Law 102-575) for such contractor,
provided that such contractor shall continue to pay applicable operation and maintenance costs and
other charges applicable to such repayment contracts pursuant to the then-current rate-setting policy
and applicable law.
(d) Certain Repayment Obligations Not Altered- Implementation of the provisions of this section shall
not alter the repayment obligation of any other long-term water service or repayment contractor
receiving water from the Central Valley Project, or shift any costs that would otherwise have been
properly assignable to any contractors absent this section, including operations and maintenance costs,
construction costs, or other capitalized costs incurred after the date of enactment of this Act, to other
such contractors.
(e) Statutory Interpretation- Nothing in this part shall be construed to affect the right of any long-term
contractor to use a particular type of financing to make the payments required in paragraph (3)(A) or
paragraph (4)(A) of subsection (a).
END
16
3
Introduction
H.R. 1837 was introduced by Congressmen Nunes, McCarthy, and Denham (R-CA) on May 11, 2011, and on
February 14, 2012, Republicans offered an amendment in the nature of a substitute. This revised version contained
extreme provisions, which would upset state water rights, placing the priorities of a few agricultural interests over
the water needs of other farmers, fishermen, municipalities, industries, and the environment.
If enacted, H.R. 1837 would have far reaching impacts, not just for California but for the Bureau of Reclamation
and the seventeen western states.
What Enactment of H.R. 1837 would mean for California:
• Fundamentally alter the allocation of water rights within California, in essence allowing more junior agri-
cultural users in the Central Valley to cut straight to the headwaters, to the detriment of more senior water
users, whose priority rights are established under current law because they utilized the water first.
“It is almost breathtaking in its total disregard for equity and its willful subjugation of the State
of California to the whims of federal action.” — May 27, 2011 letter from the California State Leg-
islature1
1 Letter was signed by Senate President pro Tempore Darrell Steinberg, Speaker of the California Assembly John Perez, and As-
sembly Chairs Huffman and Chesbro, and Senate Chair of Natural Resources and Water Fran Pavley
Cutting off the Headwaters:
Analysis of H.R. 1837, the San Joaquin Valley Water Uncertainty Act
June 13, 2011 Subcommittee on Water and Power
Part II Legislative Hearing on H.R. 1837
(Rep. Garamendi) Mr. Herrick, you were talking about the area of origin. Are these counties the area of
origin counties? Nevada, Placer, El Dorado, Calaveras, Tuolumne, Mariposa, Merced, are those areas of
origin counties?
(Mr. Herrick) Absolutely. That is where much of the water originates that flows down into the main rivers
that goes into the delta.
(Rep. Garamendi) and this bill, in its present form, would remove their rights and substitute federal law,
is that correct?
(Mr. Herrick) That is correct.
(Rep. Garamendi) Why would anybody representing those counties support this piece of legislation?
(Mr. Herrick) I can’t explain why, but the water battles in California make people line up in different - on
different sides at different times.
4
• Preempt existing state water law by preventing the implementation of scientifically-based protections for
salmon and other protected species, ignoring the recent collapse of the West Coast salmon fishery and
preventing the jobs that could be created by recovery of salmon.
“California’s complex water problems require thoughtful, science-based solutions developed
with the support of the Federal and state governments and all stakeholders. H.R. 1837 flies in the
face of this principle by undermining State water laws, dismantling bipartisan and broad-based
planning processes, and discarding a productive settlement in favor of continued contentious-
ness and litigation. We believe this legislation would not help move California toward the collab-
orative and science-based solutions we need to address California’s water supply and ecosystem
challenges.” —June 2, 2011 letter from Secretary of the Interior Ken Salazar
• Repeal the court-approved San Joaquin River Restoration Settlement and the San Joaquin River Settle-
ment Act, which has been litigated and negotiated for over two decades, creating more legal uncertainty
for all affected parties.
“Title II of the H.R. 1837 would repeal the San Joaquin Restoration Settlement Act and prohibit
further federal participation in the San Joaquin River Restoration Settlement. The Friant Water
Authority is a party to the Settlement as approved by the Federal Courts in 2006 and thus has a
contractual obligation to comply with the Settlement and therefore opposes amendments to the
Settlement Act that are not agreed to by the settling Parties.” May 25, 2011 Letter from the Friant
Water Authority
What enactment of H.R. 1837 would mean for the Bureau of Reclamation:
• Erode long-standing western water principles by setting aside a century of Reclamation Law, which pre-
serves the state’s legal ability to control, appropriate, use, or distribute irrigation water.
“This type of broad and complete preemption of state law represents a complete paradigm shift
from over 100 years of Reclamation law and purposeful direction from Congress of deference to
state water law.” – Testimony from Commissioner Mike Connor, U.S. Bureau of Reclamation
“As Wyoming’s State Engineer, I am deeply troubled by the precedent that could be established
should H.R. 1837, the San Joaquin Valley Water Reliability Act, pass and become law. Specifi-
cally, I am most concerned with section 202 which would set aside Section 8 of the Reclamation
Act of 1902 and effectively preempt California state law. This direct weakening of the deference
to state water law is unacceptable. It poses a threat to water rights and water administration
across the Western U.S.”—August 9, 2011 letter from Pat Tyrell, Wyoming State Engineer
“From the very beginning, the federal projects and operations have been specifically mandated
to be under state regulation so that federal participation in programs addressing water issues
does not frustrate or preclude each state from controlling its own policies. This principle has
been the subject of over 100 years of negotiation, litigation and federal action. Virtually every
relevant law passed by Congress in the last 100 years has contained a provision that explicitly
stated that the federal action/law would not otherwise alter or supersede state water law. Since
the waters that flow in the streams and rivers of California are owned by the people of California,
California should decide what rules apply to the use of those waters, and under what conditions
such uses will be allowed. State water laws should not exist at the whim of Congressional debate.”
— Testimony from John Herrick, Esq., Counsel and Manager, South Delta Water Agency
5
What enactment of H.R. 1837 would mean for the seventeen western states:
Create precedent setting legislation impacting the management of water rights in the entire west:
“The bill’s explicit preemption of California law runs contrary to the long established tradition
of Congressional and court deference to states on water resource decisions. Consequently, this
bill sets a very dangerous precedent of Congressional intervention into state water rights, which
could have far reaching consequences not only for California, but for other states as well.” —June
7, 2011 letter from U.S. Senator Feinstein and U.S. Senator Boxer
“The Council opposes any weakening of the deference to state water law as now expressed in
Section 8 [of H.R. 1837] as inconsistent with the policy of cooperative federalism that has guided
Reclamation Law for over a century. This is a threat to water right and water right administration
in all the Western States.”—August 1, 2011 letter from Weir Labatt III, Chairman, Western States
Water Council
“States are responsible for allocating and administrating rights for all types of water uses, and are
best positioned, working cooperatively with local and federal partners, to evaluate and prioritize
state needs. H.R. 1837 would erode the longstanding deference to state authorities as articulated
in Section 8 of the Reclamation Act, and would inhibit the ability of states to develop balanced
and cooperative solutions to the complex issues facing water resources today. For these reasons,
H.R. 1837 should not be enacted as law.” — August 16, 2011 Letter from Mr. Phillip Ward, Direc-
tor of the Oregon Water Resources Department
“H.R. 1837 would also overturn a century old precedent in water law: Congress ought not to pre-
empt the right of states to manage their own water under state water rights law. If this bill passes,
no state will be safe from congressional interference in their water rights laws.” —Testimony from
California Natural Resources Secretary John Laird
If enacted, H.R. 1837 would not:
• Support the coequal goals, as stated in the bipartisan Sacramento-San Joaquin Delta Reform Act of 2009,
of first providing a more reliable water supply for California, and second protecting, restoring, and en-
hancing the overall quality of the California Bay-Delta.
• Solve California’s water problems through a thoughtful, science-based stakeholder process.
• Resolve the long standing issues on the San Joaquin River and provide flood protection and water supply
projects for farmers that were approved as a part of the San Joaquin River Restoration Settlement Act2.
• Maintain environmental protections necessary to sustain rebuild and salmon populations, which are the
backbone of the west coast salmon fishery and support fishermen, their livelihoods, and local coastal com-
munities.
A solution to California’s complex water issues must be found through a local, state, and federal stakeholder
process, using the best available science and respecting all applicable state laws. H.R. 1837, the San Joaquin Val-
ley Water Act, has nothing to do with job creation and water reliability and everything to do with water supply
uncertainty.
2 Title X, Subtitle A of P.L. 111-11
6
Background
The Bureau of Reclamation’s (Reclamation) Central Valley Project (CVP) intersects the Sacramento River, the San
Joaquin River, and the Sacramento-San Joaquin Delta, spanning over 400 miles. The multipurpose project pri-
marily serves to deliver water contracts of approximately seven million acre-feet annually for agricultural, urban,
and wildlife use. (One acre-foot is approximately 325,800 gallons, or enough water for a family of four annually).
The project also serves to regulate rivers, control flooding, and generate 5.6 billion kilowatt hours of electricity
annually.
About 90 percent of the CVP water (five million acre-feet) is used for agricultural purposes, irrigating 3 million
acres of farmland3. According to a recent census, nine of the nation’s top ten producing counties are in California4.
Six of those counties are served by the CVP, producing crops and livestock worth almost $20 billion.
Sacramento-San Joaquin Delta agriculture supports 13,700 jobs, $1.1 billion in value added, and nearly $2.8 bil-
lion in economic output in the five Delta counties. In addition, Delta agriculture supports nearly 23,000 jobs, over
$1.9 billion in value added, and over $4.6 billion in economic output in the state of California5.
The remaining ten percent of the CVP water is delivered to two million municipal and industrial (M&I) users.
The project also dedicates 800,000 acre-feet per year to fish and wildlife and their habitat and 410,000 acre-feet to
State and Federal wildlife refuges and wetlands, pursuant to the Central Valley Project Improvement Act (CVPIA).
Delta recreation and tourism supports 2,700 jobs, $152 million in value-added, and nearly $284 million in eco-
nomic output in the five Delta counties. In addition, Delta recreation and tourism generates over 4,900 jobs, $324
million in value-added, and $600 million in economic output in the state of California. Even though the value
of Delta recreation and tourism has flattened, improved water quality and new investment in recreation facilities
and hospitality enterprises are frequently cited as being essential to growing recreation and tourism in the Delta6.
Supporters of H.R. 1837 argue that water shortages and job losses were not primarily a result of the drought, but
instead because of environmental and regulatory restrictions. Yet the California Department of Water Resources
reported that three-quarters of the reductions in delta water exports (1.6 MAF) were due to drought conditions
and less than a quarter (0.5 MAF) was due to environmental protections, such as maintaining delta salinity stan-
dards7. Several studies estimated the loss of jobs from the drought were much higher than from environmental
protections.
3 http://www.usbr.gov/projects/Project.jsp?proj_Name=Central+Valley+Project
4 http://www.cdfa.ca.gov/Statistics/
5 http://www.delta.ca.gov/res/docs/Admin%20Draft%20ESP.pdf
6 http://www.delta.ca.gov/res/docs/Admin%20Draft%20ESP.pdf
7 http://www.usbr.gov/main/docs/CA_Water_Reality_Check.pdf
7
“““
“
””
””If enacted, H .R. 1837 threatens to undermine the 2000 Trinity River Record of Decision
, and limits the ability of the Bureau of Reclamation to manage the Trinity River Division
of the CVP to provide reliable quantities and quality of water for in-river restoration flow
releases. The Yurok Tribe is the single largest harvester of Trinity River fall Chinook salm-
on and is dependent upon its fishery to meet our subsistence, economic and ceremonial
needs. – June 10, 2011 letter from Thomas O’Rourke, Yurok Tribe
For over one hundred years the salmon industry has been a mainstay of the Califor-
nia economy and a major food producer for California and the nation. As recently as
2002, 720,600 Central Valley salmon were harvested sending over 8.6 million pounds
of fresh salmon to the market Since that time the policies of the state and federal water
agencies have devastated most of this production. It can be recovered, but it cannot be
recovered without policies that balance the water needs of the salmon with the other
water needs of the state. A water grab by a few agricultural interests at the expense of
the salmon industry and the other water users of the state is simply fallacious public
policy. – Testimony of Richard Pool, Salmon Fishing Equipment Manufacturer
H.R. 1837 would eliminate many of the protections now in place for Central Valley
salmon – in the San Joaquin River and the Bay-Delta Estuary. It undermines efforts at
protecting and recovering the Central Valley’s listed salmon species. It jeopardizes the
restoration and productivity of fall-run Chinook populations. It likely will destroy Cali-
fornia’s salmon fishery and the jobs of thousands up and down the coast who depend
on this resource and the fishing communities this fish supports. – Testimony of David
Bitts, Commercial Fisherman
H.R. 1837 would negate more than 17 years of research and science by reverting to 1994
water operations. These operations would ignore the universally accepted scientific
understanding that the Bay-Delta ecosystem is in a state of collapse and in addition, the
significant strides toward adaptively managing implementation with science. If imple-
mented, these operations would hasten the decline of numerous species, including fall-
run Chinook salmon, which are key to the economic stability of fishing communities
along the west coast. – Testimony of Will Stelle, National Marine Fisheries Service
Water is needed by both farmers and fishermen. Taking away water from the environ-
ment, as H.R. 1837 would do, means killing fishing jobs and ways of life by preventing
recovery of salmon:
WATER
AGRICULTURAL & FISHING JOBS
8
Table 1: Estimates of San Joaquin Valley Employment Losses
Due to Reduced Water Supplies 8
Source Biological Opinions
(Salmon and Smelt)
Total 2009 Impacts
(Drought + Biological Opinions)
UC-Davis (Howitt et. al.)2,973 7,434
Univ. of Pacific (Michael)1,392 5,567
UC-Berkeley (Sunding et. al.)720 (Smelt only)4,965
8
8 http://forecast.pacific.edu/water-jobs/SJV_Rev_Jobs_2009_092810.pdf, http://giannini.ucop.edu/media/are-update/files/ar-
ticles/v14n4_3.pdf
Underlying the impacts of the drought on unemploy-
ment are the foreclosure crisis and housing collapse.
The value of private building permits has declined
by more than $5 billion per year in the San Joaquin
Valley, and home values have dropped more than 50
percent in most areas. Low-income cities on the west
side of the San Joaquin Valley saw some of the biggest
declines9.
Meanwhile, supporters of the H.R. 1837 also argue
that fishermen have not been impacted by water
shortages. In 2008 and 2009, the west coast salmon
fishery was closed for the first time, resulting in 100
percent unemployment. Former Governor Arnold
9 http://forecast.pacific.edu/water-jobs/Facts%20
about%20Water%20and%20Jobs.pdf
Schwarzenegger’s Administration estimated that this
two-year closure of the salmon fishery resulted in the
loss of $534 million and almost 5,000 jobs10. Other
analysts have estimated significantly higher economic
and job impacts as a result of this closure, while the
University of the Pacific has estimated that the loss of
employment due to the closure, without taking into
account the impacts on the retail and restaurant re-
lated businesses, was 1,823 jobs11.
10 Press Release, Governor Arnold Schwarzenegger, “Gov.
Schwarzenegger Addresses Impact of Vote to Close Salmon Sea-
son for Second Consecutive Year,” April 21, 2009; Press Release,
Governor Arnold Schwarzenegger, “Gov. Schwarzenegger Takes
Action to Address Impacts of Vote to Close Commercial and
Recreational Salmon Fisheries,” April 10, 2008.
11 http://forecast.pacific.edu/BFC%20salmon%20jobs.pdf
The San Joaquin Valley Water Uncertainty Act
The legislation as introduced has three titles. Title I seeks to make substantial changes to the Cenral Valley Im-
provement Act (CVPIA) (Section 34 of P.L. 102-575), including the repeal of many environmental protections.
Title II of the legislation repeals the San Joaquin River Restoration Settlement Act (Title X, Subtitle A of P.L. 111-
11). Title III involves the conversion of long term contracts and acceleration of repayment of project costs.
9
Title I: Sweeping Changes to the Central Valley Improvement Act
Title I of H.R. 1837 significantly amends the CVPIA and supersedes the application of the Endangered Species Act
(ESA) and California state law. Table 2 outlines the major changes H.R. 1837 proposes to the CVPIA.
Table 2. Comparison of Major Provisions of CVPIA and H.R. 1837
Central Valley Project Improvement Act H.R. 1837
San Joaquin Valley Water Uncertainty Act
Precludes new contracts from committing additional
water for “any purpose other than fish and wildlife”
before current and pending environmental obligations
have been satisfied.
Amends CVPIA to remove the provisions that prohib-
ited new contracts without meeting certain environ-
mental criteria. (Section 103)
Directs the Secretary, upon request, to renew con-
tracts for one 25-year term and allows successive
renewals of 25 years.
Reverts contract renewal terms back to 40 years;
removes conditions in place that must be met before
contract renewal; and directs the Secretary, upon
request, to renew existing long term contracts for a
period of up to 40 years, and directs successive renew-
als of 40 years. (Section 103)
Established a “tiered water pricing system” to encour-
age water conservation and efficiencies.
Strikes the tiered water system. This would remove
the incentive to conserve water and would encourage
water service contractors, particularly those north of
the Delta who are more likely to take a large share of
their contracted supply, to take additional water under
the terms of their contracts. (Section 104)
(No existing comparable provision.)Repurposes the CVPIA restoration fund so monies
can be used for any activity described in CVPIA, not
just for restoration; limits restoration fund payments
by power contractors to $4 per megawatt-hour; pro-
hibits the Secretary from charging restoration funds
for other “environental restoration or mitigation fees”
before storing or conveying non-CVP water, deliver-
ing surplus water under Section 215 of the RRA, or
delivering water for groundwater recharge; establishes
an advisory board comprised of water and power
contractors to make recommendations on how to
spend the funds; and establishes December 31, 2020
as a deadline for completing fish, wildlife and habitat
restoration under the CVPIA. (Section 106)
Dedicated 800,000 acre-feet of CVP yield for fish and
wildlife purposes.
Requires the Secretary to replace the 800,000 acre-feet
of water from CVP yield dedicated for fish, wild-
life, and habitat restoration purposes under Section
3406(b)(2) of CVPIA by 2016 or suspend use of this
water for such purposes until it is replaced. (Section
107)
10
If They Could Turn Back Time… Republicans find a Way: Section 108(a)
Section 108(a) of H.R. 1837 states that in the operation of the CVP all requirements of the Endangered Species Act
(ESA), including biological opinions (BiOps) for listed species, would be met through the “Principles Agreement
on the Bay-Delta Standards Between the State of California and the Federal Government,” known as the Bay Delta
Accord. The Bay Delta Accord was signed in December 1994 and put into place water quality standards and op-
erational constraints to protect the Delta and water supply reliability. In the Bay Delta Accord, it was agreed that
there would be an immediate reconsultation of BiOps affecting the operations of the CVP.
Reverting to standards established in the Bay Delta Accord ignores the previous fifteen years of impacts on the
Delta ecosystem from water diversions. The existence of Delta smelt and salmon is clearly in jeopardy, while the
health of the Delta has continued to decline, as indicated by the two to three-fold increases in listed species since
1994. In addition, increased understanding of climate change and its impacts, such as sea-level rise and changes
in the timing and amount of rainfall and snowmelt, requires flexible water management operations that protect
species and water supply reliability.
The 1994 BiOps were subsequently reissued. In 2004, the Fish and Wildlife Service (FWS) issued a BiOp making
the astonishing claim that CVP operations did not jeopardize the continued existence of the delta smelt. In the
same year, the National Marine Fisheries Service (NMFS) issued a BiOp with the same conclusion for salmon.
Both of these BiOps were deemed “arbitrary and capricious” by the courts. Currently, the 2008 BiOp for delta
smelt and the 2009 BiOp for salmon have found that CVP operations jeopardize the existence of these species.
Reverting back to the Bay Delta Accord environmental provisions would also stifle the ongoing efforts under the
Bay Delta Conservation Plan (BDCP), a collaboration of State, Federal, and local water agencies, State and Federal
fish agencies, environmental organizations, and other interested parties.
Section 109 directs the Secretary of Interior not to distinguish between naturally-spawned and hatchery-spawned
salmon when making a determination under the Endangered Species Act. Hatcheries are an important short-to
medium-term tool to sustain salmon populations in the face of habitat degradation. Currently, it is estimated that
90 percent of fall-run Chinook salmon populations, the backbone of the west coast salmon fishery, are derived
from hatcheries. This has resulted in a decrease in genetic diversity of these salmon, leaving them increasingly
susceptible to other environmental stressors, such as changing ocean conditions and climate change.
Cutting to the Headwaters: Section 108(b) Preemption of State Law
Section 108(b) of H.R. 1837 preempts state laws and regulations that restrict federal and state water project op-
erations for the purpose of protecting endangered species, undermines decades of federal-state cooperation on
endangered species protections and will likely lead to inadequate and inconsistent protection for valuable fish and
wildlife resources.
Title II: Repeal of the San Joaquin Restoration Settlement: more litigation, more uncertainty
Title II of H.R. 1837 repeals the San Joaquin River Restoration Settlement Act and preempts the application of
California state law. Below is a description of the sections in Title II, which, if enacted, will lead to more decades
of litigation and water supply uncertainty.
Section 201 repeals the San Joaquin River Restoration Settlement Act (P.L. 111-11, Title X, Subtitle A). This Settle-
ment was broadly acceptable to water contractors who prior to the Act had been operating under considerable
uncertainty regarding their water supply due to pending litigation over the preceding two decades. Repealing the
Settlement will result in a return to this uncertainty, as well as a possibility of dramatic cuts to water diversions.
Section 203(1) provides restoration flows of 50 cubic feet per second (cfs) from Friant Dam, except in a critical
water year. Section 204 also directs the Secretary of Interior to implement a plan to recover and replace these
restoration flows and fully mitigate any groundwater impacts from these flows. Flows considered under the draft
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Rep. Grace Napolitano: Now, yes or no
to Mr. Birmingham, Mr. Beck and Mr.
Upton, does Westlands fully support the
preemption of state law, Kern County
and Mr. Upton?
Mr. James M Beck: Ranking Member, I
was very specific in my testimony.
Rep. Napolitano: Yes or no, sir.
Mr. Beck: Yes.
Mr. Kole Upton: I would refer to Mr.
Denham. Elections make a difference,
he was elected in our area and I would
agree with whatever he says. And this bill
supports that.
Rep. Napolitano: Yes or no, sir.
Mr. Thomas Birmingham: Westlands
supports the provisions contained in
H.R. 1837.
Rep. Napolitano: Which means yes.
Thank you, sir.
Pre-empting State law, June 2, 2011 Subcommittee on
Water & Power Part I Legislative Hearing on H.R. 1837
Subcommittee on Water & Power Ranking Member Grace Napolitano
James M. Beck, General Manager, Kern County Water Agency
Kole Upton, Farmer, Merced & Madera Counties
Thomas Birmingham, General Manager, Westlands Water District
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Program Environmental Impact Statement/Environmental Impact Report (PEIS/R) range from 475 to 4,500 cfs
from Friant Dam to protect salmon and habitat.
Section 204(m) preempts and supersedes any State law, regulation, or requirement that imposes more restrictive
requirements or regulations for activities authorized under this Title.
Section 207 deems this Title to meet the requirements of CVPIA and California Fish & Game Code Section 5937.
Violations of these laws were the basis for litigation in 1988.
Section 209 establishes a San Joaquin Fishery Restoration Fund comprised of Friant Surcharge payments, non-
Federal contributions, and any funds from the San Joaquin River Restoration Fund (P.L. 111-11, Section 10009(c)
(1)). This Fund would support the recovery, replacement, and mitigation of these restoration flows, and not the
protection of salmon and habitat.
Title III: Contract Conversion
Title III directs the Secretary of the Interior, at the request of the contractor, to convert their “water service”
contracts to long-term “repayment” contracts. Repayment contracts repay the capital costs of the project in fixed
annual installments. Water service contracts pay a combined capital and operation and maintenance charge for
each acre foot delivered.
Conversion into repayment contracts under the terms of H.R. 1837 would require Reclamation to enter into
subsequent repayment contracts under the terms of the legislation, and require that Reclamation make the de-
termination that the CVP is complete. Once converted into repayment contracts, the amount of water under the
contract would in all likelihood, be fixed in perpetuity. This would limit Reclamation’s ability for responding to
water shortages, drought and climate change-related issues.
Letters of Opposition
The record of opposition to H.R. 1837 continues to grow. Western states are opposed to the precedent-setting
trumping of state water law. Fishermen are opposed because of the negative impacts on coastal jobs and com-
munities. Fishing, hunting, and environmental groups are opposed to the reversion of decades of environmental
protections for the San Joaquin Delta.
Since last year, the Committee has recieved dozens of letters in opposition. The amendment in the nature of a sub-
stitute attempts to address some of these concerns, but not all have been met. These letters of opposition include:
U.S. Department of the Interior
State of California
State of Colorado
State of Oregon
State of Wyoming
Elected Officials
Senator Barbara Boxer
Senator Diane Feinstein
Congresswoman Lois Capps
Congressman John Garamendi
Congressman Wally Herger1
Congressman Dan Lungren1
Congresswoman Doris Matsui
Congressman Tom McClintock12
Congressman George Miller
Congresswoman Grace Napolitano
Congresswoman Jackie Speier
Congressman Mike Thompson
California Senate President pro
Tem Darrell Steinberg
California Assembly Speaker John
Perez
12 Opposition limited to water rights
provisions
State Senator Fran Pavley
Assemblymember Bill Berryhill
Assemblymember Joan Buchanan
Assemblymember Wesley Chesbro
Assemblymember Jared Huffman
Newspapers
The San Francisco Chronicle
The Sacramento Bee
The San Jose Mercury News
The Contra Costa Times
Redding – The Record Searchlight
Amador – Ledger Dispatch
Woodland – The Daily Democrat
The Monterey County Herald
Water Districts and Local
Governments
Butte County
Central Delta Water Agency
City of Stockton
Contra Costa Water District
Placer County Water Agency
Reclamation Districts 3, 150, 551, 554,
999
San Joaquin County Board of Super-
visors
South Delta Water Agency
Business Groups
California Delta Chambers & Visitor’s
Bureau
The Contra Costa Council
Silicon Valley Leadership Group
Stockton Chamber of Commerce
Environmental Groups
American Rivers
AquAlliance
California League of Conservation
Voters
California Water Impact Network
Campaign for Common Ground
Concerned Citizens Coalition of
Stockton
Defenders of Wildlife
Earthjustice
Environmental Defense Fund
Friends of the Eel River
Friends of the River
Institute for Fisheries Research
League of Conservation Voters
Restore the Delta
Safe Alternatives for our Forest Envi-
ronment
Natural Resources Defense Council
The Nature Conservancy
Northcoast Environmental Center
North Coast Rivers Alliance San Joa-
quin River Parkway and Conservation
Trust
San Joaquin Audubon Society
Save the American River Association
Save the Delta
Sierra Club California
Southern California Watershed Alli-
ance
Commercial and Recreational
Fishing and Hunting Organizations
and Businesses
American Sportfishing Association
California Sportfishing Protection
Alliance
California Striped Bass Association
Coastside Fishing Club
Craig Hanson – “Outdoors” Radio
Host
Federation of Fly Fishers
The Fish Sniffer
Fred Hall Shows Long Beach
Golden Gate Fishermen’s Association
Jeff Robles Tackle Sales
Lower Sherman Island Duck Hunters
Association
Monterey Fish Market
Northern California Federation of Fly
Fishers
Northern California Guides Associa-
tion
Northwest Sportfishing Industry Alli-
ance Oregon & Washington
Outdoor Pro Shop
Pacific Catch Fish Grill
Pacific Coast Federation of Fisher-
men’s Associations
Pro-Troll Products
Rapala USA
Salmon Water Now
SF Crab Boat Owners Association
Small Boat Commercial Salmon Fish-
ermen’s Association
Water4Fish
Tribal Groups
Modoc Nation
Winnemem Wintu Tribe
Yurok Tribe
Agricultural Groups
Friant Water Authority13
Recreation Groups
Trinity Lake Revitalization Alliance,
Inc.
13 Opposition limited to San Joaquin
River Restoration provisions